Who watches the watchers? Nobody, after Texas high court favors impunity for all

In the Texas political system, the people are represented by two separate yet equally important groups — the public boards that provide accountability and, when that fails, the people themselves, in particular, the journalists and activists among them.

We tend to think of government along the three branches we were taught as children. Or we think of it as the public force for order — the police and prosecutors mentioned in that famous Law and Order intro we just borrowed.

But if your concern is how the public force for order can itself degrade into chaos, if you think that governments that aren’t kept accountable will inevitably abuse their power, then the three elective branches aren’t all that relevant to the consideration, at least not in Texas.

The two high courts in Texas, owing to their notions of sovereignty, immunity, and separation of powers, often decide against ordering state agencies around, even when they’re violating the law. The part-time Legislature is designed to be hands-off and the governor has no direct authority over most of the state government.

In Texas, the executive function is carried out not by the governor, but by a constellation of independent boards and commissions overseen by civilian appointees. Most of the time, those appointees are the closest Texans get to democratic control of their institutions.

If a regulatory agency is “captured” by corrupt interests it’s meant to police, if a board majority is complicit in a kickback scheme, or if university officials decide to pay themselves the sort of salaries that touch off criminal scandals elsewhere, the system only has two levels of practical accountability — their boards and public opinion.

It’s a system that tilts dangerously towards impunity.

That’s why independent boards and commissions are so important to good government here.

It’s why an apparently minor policy proposal at the State Bar concerning access to records by board members is worth some close attention. And it’s one reason a 2017 state Supreme Court decision known as Hall v. McRaven is problematic.

In the first part of this series, we looked at how Hall v. McRaven has become a sort of get-out-of-jail-free card for state officials accused of ignoring the law. That decision, in which the state Supreme Court ruled that a University of Texas official supported by a board majority could refuse to turn over records to a member of the board of regents, will take some time to shake out. For one thing, the courts will have to work out just how often they’re going to let officials play that card. It’s clear, however, that the Hall decision is a menace to dissidents on public boards and commissions.

Whatever else the decision might mean, it’s clearly a license for board majorities to adopt policies that keep their opposing colleagues in the dark.

“Any board, council or commissioners court so inclined will find in the Hall opinion a license for administrators to seek majority board cover to sideline ‘troublesome’ board members from access to information,” says attorney Joseph Larsen, a member of the board of the Freedom of Information Foundation of Texas. “These board members have a mandate as public representatives on the board, and limiting their access to information thereby cloaks the board from effective public oversight and undermines the American ideal of self-governance.”

The policy was specifically modelled on the University of Texas System policy, Bar president Tom Vick said. That policy that was created to keep a board member named Wallace Hall from seeing the records of an investigation into a secret backdoor admissions scheme run by former President Bill Powers.

While the Bar had a long-running problem with embezzlement, it’s also a fractious organization riven by parties that mistrust each other. For example, the election of Joe Longley, Vick’s successor, was seen by many as a rebuke of the existing powers.

Thanks to Longley, the Bar appears to be hesitating on the new policy. At its last meeting, the Bar punted its decision on the policy after a new Transparency Task Force formed by Longley voiced its objection.

Mark Ticer, chairman of the task force, objected that the policy “impinges on the fiduciary obligations of directors or officers who seek access to [State Bar] information,” and “undermines the charge and work of the [task force] and could send a negative message to the [State Bar] membership and the public about transparency at the [State Bar].”

In an interview, Ticer said the Bar hadn’t taken any action since postponing a vote on the policy in January. He called for the organization to “get rid of this good old boys club mentality. We don’t aspire to be the University of Texas. That is the lowest form of compliance, meeting the minimum standards. We want to exceed the requirements of the [Texas Public Information Act].”

Mark Jones, a political science professor at Rice University, sees boards as intermediaries between agencies and the public, providing the sort of oversight that’s impossible for anyone else, while still providing confidentiality for legitimately sensitive matters.

“Journalists provide a measure of accountability for public agencies, but they’re usually kept from seeing the most embarrassing records,” Jones said.

While most government records are public in theory, in practice, agencies are often able to hide that embarrassing information by citing one of the dozens of exemptions to public records law. The state’s once powerful open records act is now tattered with such loopholes, making secrecy easy.

And sometimes, an agency actually does have a good reason for keeping a secret. That’s where the board comes in.

As citizen overseers, board members have a right to review sensitive records that may be of public interest. They provide a check, but that only works if they can check things out.

If the State Bar goes through with its proposal, “it’s setting a somewhat worrisome precedent, because it makes accessing records all the more difficult and reduces board member oversight,” Jones said. “It makes it more difficult to engage with the workings of the body for which they’re supposed to be providing oversight.”

Although boards often like to present a unified public face, dissenters bring more than accountability. They can improve policy, Jones said.

“They can sometimes be disruptive but they can also prevent groupthink,” he said. “They force the majority to justify their actions, whether that’s actually thinking it through, or at the very least stating their reasons.”

Also, state law gives board members fiduciary responsibilities, which a long run of state attorney generals, whether Democrat or Republican, have understood to include access to records.

In 1983, Attorney General Jim Mattox issued an opinion that a college trustee had an “inherent right of access” to records at the college. His successor Dan Morales made clear that applied to all “members of the governing body of a state or local institution.”

All that was thrown in doubt when the Supreme Court followed a very different train of thought in the Hall case. That ruling didn’t formally overturn the Attorney General opinions, owing to procedural reasons, but the opinion still serves for any agency that wants to silence its troublesome dissidents.

SCHOOL BOARDS

Kelley Shannon, the executive director of FOIF-Texas, said that the main way she sees board minorities silenced “is the occasional school board president telling board members they cannot speak on their own to the media — i.e., they can’t represent the school district by speaking out. They have to let the president or superintendent do it.”

For several years, school districts have been at the center of the problem in Texas, with some boards enacting policies to keep records away from “troublesome” members, and even censuring them for doing their jobs.

In 2013, the Fort Worth Independent School District voted 6-0 to censure trustee Ann Sutherland for her temerity in “taking up too much of the staff’s time in fulfilling her open records requests,” as the local alt-weekly reported.

The same year, Irving ISD censured board member Steven Jones for, among other things, daring to call two district employees. The school district even hired a private investigator to make a case against the board member.

In 2012, Round Rock ISD voted 5-1 to censure board member Terri Romere four times for, in particular, daring to ask the attendance figures for the district’s alternative high school, after receiving documents anonymously that showed things weren’t what they appeared to be.

The explanation from Jesus Chavez, the superintendent at the time, speaks volumes about the institutional attitude towards board members deemed to be outsiders.

“When a board member asks for information, and it is information that is not related to a pending decision that has to be made, or that if a board member asks for too specific information and gets into the weeds into the administration of the district, I can raise my hand and say, ‘Wait a minute, board, that’s too much detailed information,’” Chavez said. “The board member does not need that and that we can bring it… to the board as a whole.”

The Texas Association of School Boards encourages school districts to think they have the right to keep information from board members, even though the Legislature has passed two bills in recent years to make it clear that they do not. A recent TASB guide states that “districts have grappled with whether and when to withhold information that is excepted from disclosure under law from a board member requesting such information,” which is true in that some districts are dragging their feet.

In 2013, in response to school districts forcing board members to file public records requests, the Legislature passed a bill codifying the standard established decades ago by the Attorney General’s office, that district trustees have “an inherent right of access to records.”

So districts began claiming that a federal law known as FERPA prevented disclosure in some case. For example, Fort Worth, the district that censured Sutherland, has a records policy taken straight from the TASB holding that district officials may determine that board members have “no legitimate interest” in records. That standard comes from FERPA.

The Legislature revisited the issue in 2017, striking language from the law to the effect that districts were not required “to provide information, documents, and records that are not subject to disclosure under” FERPA.

A VOICE IN THE WILDERNESS

Mike Neil, a former trustee of Beaumont ISD who was always in the minority, but still uncovered several major financial scandals, knows the difference between having an “inherent right of access” to information and having to take what they give you.

When district officials balked at sharing something, “We said, ‘We know the law,’” Neil said. “If it wasn’t for the statute we used to get the information, Beaumont would still be run by those guys.”

Aaron Harris, a conservative activist in North Texas, recalls how the powerful and secretive Tarrant Regional Water District (which functions more like a redevelopment agency) was able to resist scrutiny even after challenger Mary Kelleher got elected to the board and started demanding financial records.

Even with the backing of several state lawmakers, who were also asking for the records, she never got very far. Instead, she got censured.

“After months and months of back and forth, [state Rep.] Lance Gooden eventually got a data dump from them,” Harris said. “The files they provided did not include what they were looking for. For example, if I recall, the bank register had a dozen or so entries for a multi-year period.”

Now, powerful agencies run by entrenched interests won’t have to bother giving the runaround to troublesome newcomers; they can just cite Hall and close the books.

At Houston Community College, where dubious contracting practices led to an FBI investigation and a bribery conviction last year for a former board member, the board majority thinks its problem is a dissident board member named Dave Wilson.

That bribery conviction and Wilson’s whistleblowing prompted the school’s accrediting body, the Southern Association of Colleges and Schools Commission on Colleges, to write the board and demand an explanation. The agency wanted to know if the board was “controlled by a minority of board members or by organizations or institutions separate from it.”

In its response, HCC attempted to suggest that somehow Wilson might be pulling strings. It then voted to censure him.

“It is obvious that I do not control the Board,” Wilson said. “If I did, I would not have allowed a censure of me.”

Even before it was legal, HCC’s board established official policies meant to keep Wilson from seeing sensitive records.

In Oct. 2016, the board amended its bylaws to formally shut out Wilson:

“Board members seeking information from the College administration will submit a written request to the Board Chair for review. The Board Chair will review each request for information submitted by a Trustee, and if appropriate, will forward to the administration for handling. If the Chair determines that the request is unduly burdensome or is not reasonably related to official Trustee issues, the Board Chair shall instruct the Trustee submitting the request to narrow the scope of the request.”

“Part of what I’ve done is — I’ve just gone and started doing open records requests because it’s easier as a citizen to get it than as a board member to ask for it,” Wilson said. “I get the run-around when I get the board chair and she can at her discretion decide to give it to me or not to give it to me.”

Belle Wheelan, the president of SACSOC, said it was one thing for a chair to learn of sensitive matters before the rest of the board, but another for a chair to control the flow of information.

It’s “not unusual for a board chair to discuss issues with the executive committee of the board before it is presented to the entire board for discussion,” Wheelan said. “The expectation is that the chair would not use this strategy to keep information from the entire board. If that happens, we would consider the institution out of compliance because the minority of the board controlling in that case would be the chair.”

The threat to HCC’s accreditation may yet provide some accountability, but across the state, boards, councils, and commissions are discovering that they are answerable to no one.

Jon Cassidy is a reporter for The Texas Monitor and a contributing editor for The American Spectator. He has been an investigative reporter for Watchdog.org and an editor and reporter for The Orange County Register. His work has also appeared in The Wall Street Journal, City Journal, The Federalist, Fox News, Chronicles, Reason, and other publications. He was a 2014 Robert Novak Journalism Fellow, and is a graduate of the University of Southern California. He and his wife Michelle live just outside Houston with their two children.

30 COMMENTS

This isn’t a Rep or Dem problem, this is the result of a “perfect storm” of (1) elected officials/board members not conducting government transparently and (2) DA’s and Texas Rangers too overwhelmed with today’s soaring crime to have personnel/time to investigate. So, their answer is “hold the offenders accountable at election time”….which only allows the malfeasance time to fester.

The legislature only meets every two years. These standing committees, councils, and commissions are left to run things. That’s how San Antonio is left with the Land Commissioner re-arranging Alamo Plaza the way he he sees fit.